Will a Liberal Supreme Court Limit Money in Politics?

By Mark Schmitt

March 21, 2016

The words “Citizens United,” especially when amplified by a vigorous Democratic presidential nomination fight, have become a potent shorthand for the influence of great wealth over American democracy. With the death of Justice Antonin Scalia, the possibility of reversing the 2010 decision in Citizens United v. Federal Election Committee quickly became a live issue in the election and in the shadowboxing over Justice Scalia’s replacement.

So imagine that a Democratic president’s nominee is eventually confirmed, and at the next opportunity, Citizens United is reversed. What happens next? Will money lose its hold on American politics?

Probably not — though not because money in politics doesn’t matter. Citizens United stands at the end of a long line of decisions that have weakened Congress’s ability to limit money in politics, not all of them wrongly decided. Instead of rolling back all those decisions, we should seek to balance, rather than limit, money, and make it easier for people without wealth to run and be heard.

In itself, reversing Citizens United would be a minor step. The decision’s most specific change to campaign finance law — allowing corporations and unions to make independent expenditures to influence an election — has been of little consequence. Corporations, especially household names and publicly traded companies, would rather avoid the controversy that comes with big campaign spending. Most money still comes from wealthy individuals, as it did before Citizens United.

But Citizens United mattered in indirect ways: First, it was the basis for a lower court’s decision in the 2010 SpeechNow case, which created “super PACs,” a uniquely powerful vehicle for funding a campaign through a few megadonors. With Citizens United out of the way, that court or another might reconsider that case. But the 2016 election has demonstrated that super PACs have their limitations — think Jeb Bush — and they are not the only means by which wealthy individuals can go all out to support a candidate or party.

It was the signal the Citizens United ruling sent that has been a much bigger deal. The majority decision went beyond the question in the case to assert that only quid pro quo corruption — a measurable exchange of legislative favors for campaign money — justified regulation, indicating that the court would look skeptically on most campaign-finance limits. And, particularly because of the uproar surrounding the decision, donors and political strategists believed that an era of “anything goes” had begun, and they behaved accordingly, testing all kinds of limits, such as using nonprofit organizations to finance election campaigns.

If the real impact of Citizens United was symbolic, reversing it would be equally symbolic — but symbolism matters. Still, there would remain much work to be done. At the very least, the court would also have to reverse decisions foreshadowing Citizens United, rolling the clock back to the 2003 Supreme Court decision that used actual evidence to uphold most of the Bipartisan Campaign Reform Act (known as McCain-Feingold). But some of the practices and frauds that political operatives have developed since the Citizens United decision will not easily be put back in the bag.

And if we did succeed in rolling the campaign finance clock back to 2003, at best we would have something like the election of 2004, which was free of super PACs but did feature organizations like Swift Boat Veterans for Truth, which went after the Democratic nominee, John Kerry, and received more than half of its nearly $18 million in funding from three wealthy Texans.

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Credit Chris Maddaloni/CQ Roll Call/Getty Images

To enable Congress to limit the influence of these megadonors, the court would have to go all the way back to its 1976 decision in Buckley v. Valeo. The court said that Congress or states could put limits on contributions, in the interest of controlling corruption, but not on total spending, or on candidates’ funding their own campaigns, or on external spending like the Swift Boat campaign that is not coordinated with the campaign.

As a result, candidates find themselves caught in an arms race: trying to raise enough money to compete, in contributions of $2,700 or less (far more than any middle-class family can spare), often facing opponents funding their own campaigns or incumbents with established fund-raising machines or outside money. There’s a natural pressure to find a way out of that trap, using whatever technique your lawyers and consultants cook up. That’s why every politician who has support from large donors now has a supportive super PAC.

And there will always be a way out. The problem is not the Supreme Court — it’s the First Amendment itself. The challenge in regulating campaign spending is not deciding whether money is speech or corporations have rights, it’s defining the boundaries of the election. Elections are a special zone, and by regulating spending clearly intended to influence the election, we keep it a zone of political fairness, where voters hear all sides and elected officials can remain independent. (Think of it like the signs limiting electioneering within 75 feet of the polling place.)

The provisions challenged in Citizens United and the earlier cases all dealt with the question, “What makes an ad an election ad?” Before 2002, the principle was that it had to have “magic words” like “vote for.” McCain-Feingold tried to establish that broadcast ads that mentioned a candidate 30 days before a primary or 60 days before an election would be considered campaign ads (“electioneering communication”). That’s what brought Citizens United, the organization, and its movie attacking Hillary Clinton, to the attention of the Federal Election Commission in 2008.

But what about speech that mentions candidates long before an election? Or ads that don’t mention a candidate at all? For example, groups funded by the Koch family ran ads in the congressional elections of 2014 attacking “Obamacare” without ever mentioning a congressional candidate by name. When party and ideology are as tightly aligned as they are, an ad doesn’t need to connect all the dots to push a voter who dislikes President Obama’s health insurance program to vote Republican or an environmental activist to vote Democratic. But this kind of robust open debate about public issues is exactly what the First Amendment is intended to protect.

Then there are all the other ways that the wealthy influence policy, without getting involved in elections — through media, lobbying and philanthropy. Each channel is legitimate and most efforts to restrict them would create more problems than they solved. What Mr. Sanders calls “the billionaire class” will not lose its influence even after all the court decisions back to 1976 have been reversed.

It may be futile to try to restrict the influence of the very wealthy, but we can offset it by opening the system up and making it easier for a candidate to run and be heard, or for people working together to put a new idea on the agenda. Both Democratic presidential candidates have called for some kind of system of public financing that matches small donations, along the lines of New York City’s program, which matches small contributions six to one. Every current citywide elected official participated in the system, and small donors, including the match, accounted for 61 percent of the money spent in the 2013 elections.

Seattle’s new program of vouchers, which gives every citizen $100 to donate to campaigns, is promising but so far untested, while some conservatives are enthusiastic about using tax credits to encourage small donors. While the Supreme Court has struck some provisions of these programs, they mostly remain intact, even in the Citizens United world, and a court without Justice Scalia is likely to be even friendlier to the idea of expanding political opportunity.

Technology can combine with these programs to give campaigns a low-cost start through sites like NationBuilder that provide most of what a candidate needs, including an accurate list of voters, at minimal cost. We can also begin to think creatively about how to ensure that the broad interests of the public are heard as loudly as those who can hire lobbyists.

After Citizens United, the next step is not backward, toward old laws that didn’t work well, but forward, toward a politics that respects and expands free expression and robust debate.